Category Archives: Fourth Amendment

The Owner-Operator Independent Drivers Assn. is taking its opposition to the electronic logging device mandate to the highest court in the land. The small business trucking group this week filed a petition with the Supreme Court of the United States, arguing that the U.S. Court of Appeals for the Seventh Circuit was wrong when it ruled that the e-log requirement does not violate Fourth Amendment protections against illegal search and seizure. The deadline for compliance with the ELD rule is Dec. 18.

We believe that the Seventh Circuit erred in allowing warrantless searches of 3.5 million drivers, designed specifically to uncover evidence of criminal activity, said Jim Johnston, president and CEO of OOIDA. In doing so, the Seventh Circuit decision splits directly with rulings by both the Fifth and Eleventh Circuit Courts. This is also the first time that the pervasively regulated industry exception has been applied directly to the search of an individual to serve the ordinary needs of criminal law enforcement.

OOIDA contends that the pervasively regulated industry exception to the warrant requirement, the basis of the Seventh Circuits denial, does not extend beyond the search of business premises. Additionally, for such an exception and warrantless search, the Supreme Court imposed strict guidelinesguidelines which the ELD rule does not specifically address.

In short, according to OOIDA, an ELD requirement is the equivalent of warrantless surveillance of truckers.

The ELD Rule does far more than authorize administrative inspections of business premises. HOS regulations are directed toward the personal conduct of drivers, the petition states. ELDs monitor and record driver conduct, including driver activity and location, twenty-four hours per day, seven days per week, more expansively and invasively than paper logbooks currently do.

The association will also continue to pursue the issue on the congressional side as part of its Knock Out Bad Regs campaign and will continue to communicate with the Trump administration about this and other regulations, Johnson said.

We were very disappointed and surprised by the ruling against us by the Seventh Circuit Court of Appeals, Johnston said. That same court had ruled in our favor on a previous lawsuit of ours on this same issue. said Johnston.

The rest is here:
OOIDA appeals to Supreme Court | ELD mandate violates 4th ... - Fleet Owner

In Florida v. Jardines (2013), the U.S. Supreme Court held that a front porch is a Fourth Amendment protected area but that there is an implied license allowing the police to walk up to the front door and knock in at least some cases. If the police are just coming to talk to the homeowner, the court concluded, thats within the implied license and no Fourth Amendment search occurs. Homeowners implicitly consent to people coming to knock on the door and talk to them; thats why they have doorbells. On the other hand, if the police are bringing a drug sniffing dog to smell for drugs, that is outside the implied license. People dont implicitly consent to people coming to search them, and bringing a drug-sniffing dog to the front porch is a clear objective sign that the officers intend to search them. Coming to the front porch with a drug-sniffing dog is therefore a search, and the police ordinarily cant do that without a warrant.

Now consider this question: How does Jardines apply when properties have no trespassing signs posted? The problem is identifying the test for determining whether a posted sign revokes the implied license to approach the door and knock. To my mind, the key is that the basic nature of Jardiness implied license test is ambiguous. On one hand, you can construe that test as asking a factual question akin to implied consent: Did the person at the home impliedly welcome visitors to enter the curtilage? Alternatively, you can construe the test as asking a general social norms question: As a matter of law, do residents of homes generally grant an implied license to come up to the front door and knock? Jardines isnt clear on which understanding of the implied license is correct.

In light of the uncertainty, I thought I would point out the latest decision on the Fourth Amendment implications of no trespassing signs: State v. Christensen, from the Tennessee Supreme Court. The case has a pretty through discussion of how different courts have treated the issue. Heres how the court summarizes the question, with paragraph breaks added and some citations omitted:

Given the Supreme Courts recognition that the knocker on the front door is treated as an invitation or license to attempt an entry, Jardines, 133 S. Ct. at 1415 [emphasis added; quotation marks omitted], it is axiomatic that a homeowner may take actions to revoke or otherwise limit that invitation or license. As elucidated by the United States District Court for the Middle District of Florida [in United States v. Holmes, 143 F. Supp. 3d 1252, 1259 (M.D. Fla. 2015):

[T]he license granted to enter property to knock on a persons door is not unlimited. Rather, it extends unless and until the homeowner provides express orders to the contrary. In determining the scope of the implied license, and therefore whether a police officers approach to the front door was permissible under the Fourth Amendment, courts ask whether a reasonable person could do as the police did. Factors that may aid in the analysis include the appearance of the property, whether entry might cause a resident alarm, what ordinary visitors would be expected to do, and what a reasonably respectful citizen would be expected to do.

The question before us in this case is whether posting No Trespassing signs near an unobstructed driveway is an express order sufficient to revoke or limit the invitation/license such that a police officer may not legitimately approach the residence via the driveway in order to conduct a warrantless knock-and-talk encounter. That is, did the Defendants signs turn the investigators entry onto his property into an intrusion subject to constitutional protections?

The court goes over the very large body of case law on the question, much of it pre-Jardines and some of it post-Jardines, which reflects a range of somewhat different legal standards. The court ends up adopting a standard offered by Chief Judge Timothy Tymkovich in a concurring opinion in United States v. Carloss, 818 F.3d 988 (10th Cir. 2016), a case that has drawn considerable attention recently because of the dissent filed by now-Justice Gorsuch. The standard adopted is this: under the totality of the circumstances, would an objectively reasonable person conclude that entry onto the Defendants driveway was categorically barred?

The court concludes that under this test, a no trespassing sign ordinarily doesnt have much Fourth Amendment significance:

In short, a homeowner who posts a No Trespassing sign is simply making explicit what the law already recognizes: that persons entering onto another persons land must have a legitimate reason for doing so or risk being held civilly, or perhaps even criminally, liable for trespass. Consequently, as set forth above, a knock-and-talk conducted within constitutional parameters is a legitimate reason for police officers to enter the curtilage of a house via a driveway that is obstructed by nothing more than several No Trespassing signs. For this reason, we disagree with the dissent that a No Trespassing sign should be of particular significance to law enforcement officers in communicating that they may need to obtain a warrant before entering the property. Officers engaging in legitimate police business will conclude, correctly, that they are not engaging in a trespass when they approach a front door to conduct a knock-and-talk. We also emphasize that the occupant of a residence is under no obligation to open a door when knocked upon by a police officer who holds no warrant.

Justice Lee dissented. From the dissent:

Mr. Christensen sufficiently revoked the publics implied license to enter his property by posting multiple No Trespassing and Private Property signs near the entrance to his driveway. A person need not have a law degree or an understanding of the various legal nuances of trespass discussed by the Court to know that these signs meant visitors were not welcome. Ms. Tammy Atkins, who visited homes in the area to share her faith, understood the meaning of the signs. She testified there were several No Trespassing signs near Mr. Christensens driveway, and she did not go to houses that had No Trespassing signs. . . .

Mr. Christensen did not just post one No Trespassing sign he posted multiple signs near the entrance to his property that were clear, unambiguous, and obvious to anyone approaching his driveway. These signs adequately communicated Mr. Christensens intent to revoke the implied license to enter his property. Under the facts of this case, law enforcement officers should have heeded the signs and taken the appropriate steps to obtain a search warrant.

I dont have particular views as to which approach is right, but its an interesting question that may be headed up to the U.S. Supreme Court before too long.

I should also flag that law professors Andrew Ferguson and Stephen Henderson have had some fun with the issue and proposed some possible signs for homeowners to post to maximize their Fourth Amendment rights.

As always, stay tuned.

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The Fourth Amendment and no trespassing signs - Washington Post

As mentioned in a priorblog post, the U.S. Customs and Border Protection (CBP) can conduct searches of individualsdepartingthe United States, a fact that many are not aware of. In fact, the rule that failure to declare monetary instruments in amounts of or over $10,000 can result in its seizure is applicable to departure and CBP has confiscated funds from individuals who did not make the proper declaration as recently as two months ago after conducting an ad hoc inspection in a departure lounge at Newark Liberty Airport.

Well, what if CBP confiscates an I-Phone from an individual about to depart the United States, at an airport, without a warrant, and the individual is convicted of criminal charges partially based upon information obtained from that I-Phone. That is the question raised inU.S. v. Hamza Kolsuzin the U.S. Court of Appeals for the Fourth Circuit.

We discussed in a priorblog posthow CBP relies on the Border Search Exception cited inCarroll v. United States 267 U.S. 132 (1925)concluding that it is reasonable to conduct such border searches without a warrant given national security interests. In addition, individuals have a lesser expectation of privacy when they seek entry into the United States at a port of entry.

However, the intrusive nature of confiscating a smartphone is quite different, and this issue is addressed with reference to searches in the interior of the United States inRiley v. California, 134 S.Ct. 2473 (2014). The Court indicated that smart phones are such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude that they were an important feature of human autonomy. The Court found that given how cell phones contained in many instances the digital sum total of ones papers and effects, police searches would be unreasonable unless a warrant had been obtained.

The Hamza Kolsuz case addresses the question whether an end run around the Fourth Amendment can be made when the confiscation takes place at a border, in this case, while the individual was seeking to depart the United States.

In the interim, CBP continues to conduct searches and under appropriate circumstances, confiscate or detains laptops and smart phones as they deem necessary.

In CBP Directive Number 3340-049 dated August 20, 2009 and reviewed August 2012, U.S. Customs and Border Protection outlines its policy with regard to handling sensitive information.

CBP indicates that it might confront materials that appear to be legal in nature or an individual may assert that certain information is protected by attorney-client or attorney work product privilege. CBP takes the position that such materials may not necessarily be exempt from a Border search, but consultation with a senior officer may be necessary.

It addresses other sensitive information, such as medical records and work-related information carried by journalists, which should be handled in accordance with any applicable federal law and CBP policy.

It also addresses business or commercial information which may be sensitive or governed by the Trade Secrets Act, Privacy Act, and other laws.

At the end of the day, you will have little opportunity to discuss, debate or persuade while an inspection for admission to the United States is conducted, and you therefore may want to take necessary precautions as we described in our recentblog post.

The litigation in the Hamza case may eventually bring some clarity as CBP will be pressed and challenged as to this very sensitive issue.

The Knight First Amendment Institute of Columbia University went to court to enforce a request under the Freedom of Information Act, to provide statistics and policy records with reference to how many electronic devices CBP had been searched or confiscated at the border.

Finding the right balance between privacy rights and the security needs of the nation will continue at our ports of entry to be an elusive goal.

2017 Proskauer Rose LLP.

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Immigration Fact and Fiction: What is Left of Fourth Amendment ... - The National Law Review

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Increasing incidents involving unconstitutional searches of innocent Americans electronic devices in U.S. border zones have drawn fire from the nations civil liberties advocates. Legislation introduced by Kentucky Sen. Rand Paul would ensure that citizens protections against unreasonable searches survive the technology age.

The Republican lawmaker introduced the Protecting Data at the Border Act along with Sen. Ron Wyden (D-Ore.), with the announcement that constitutional rights shouldnt disappear at the border.

Earlier this year, an explosive NBC News report revealed that the number of warrantless technology searches along the border grew exponentially under the Obama administration. Under the new White House leadership the trend is expected to continue.

From the report:

Data provided by the Department of Homeland Security shows that searches of cellphones by border agents has exploded, growing fivefold in just one year, from fewer than 5,000 in 2015 to nearly 25,000 in 2016.

According to DHS officials, 2017 will be a blockbuster year. Five-thousand devices were searched in February alone, more than in all of 2015. []

Following uproar over the report, DHS officials have remained tightlipped about the extent of the border privacy intrusions, even evading questions about exactly hat border agents are looking for or gathering during the search process.

The refusal to provide additional information about the likely unconstitutional activity led Columbia Universitys Knight First Amendment Institute to file a lawsuit the government to provide internal Homeland Security documents detailing DHSs justification for the searches and exact information pertaining to the frequency of the searches. The lawsuit also asks DHS officials to explain what agents do with the information they gather from the searches, particularly in cases where they search devices belonging to individuals such as journalists who may have sensitive, but 1st Amendment-protected, information on their devices.

Pauls legislation would simply end the searches of citizens technological devices based on the Supreme Courts 2014 ruling in Riley v. California. In that case, justices determined that government entities must consider innovation when determining whether a search violates a citizens 4th Amendment protections against warrantless intrusion of their persons, houses, papers, and effects.

Innovation does not render the Fourth Amendment obsolete, Paul said. It still stands today as a shield between the American people and a government all too eager to invade their digital lives.

While protecting against warrantless searches, Pauls bill would allow agents to continue physical examinations of devices to make sure smugglers arent using dummy phones and computers to smuggle dangerous paraphernalia.

Heres a full copy of the proposed legislation:

Related:

Constitution-free zone: Trumps tough border policy comes with privacy problems

Group sues for answers over government laptop, cellphone searches

DHS UnConstitutional Warrantless Searches Of Phones, Computers Near Border

The Bill of Rights at the border: The First Amendment and the right to anonymous speech

Law enforcement uses border search exception as 4th Amendment loophole

DHS Report Justifies Warrantless, Suspicionless Searches Of Electronics Near Borders

Judge Upholds UnConstitutional Searches Within 100 Miles Of Borders

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Bill would end 4th Amendment abuse at the border - Personal Liberty - Personal Liberty Digest

More than 325,000 people enter the United States via airports every day, with hundreds of thousands more crossing by land at the borders. Not only is that a lot of people, its also a lot of computers, smartphones, and tablets riding along in our pockets, bags, and trunks. Unfortunately, the Fourth Amendment protections we enjoy inside the U.S. for our devices arent always as strong when were crossing bordersand the Department of Homeland Security takes advantage of it. On the other hand, the border is not a Constitution-free zone. What are the limits to how and how much customs and immigrations officials can access our data?

To help answer those questions, were offering the second in our series of posts on the Constitution at the border, focusing this time on the Fourth Amendment. For Part 1 on the First Amendment, click here.

The Default Privacy Rule

The Fourth Amendment forbids unreasonable searches and seizures by the government. In most circumstances, the Fourth Amendment requires that government agents obtain a warrant from a judge by presenting preliminary evidence establishing probable cause to believe that the thing to be searched or seized likely contains evidence of illegal activity before the officer is authorized to search.

The Border Search Exception

Unfortunately, the Supreme Court has sanctioned a border search exception to the probable cause warrant requirement on the theory that the government has an interest in protecting the integrity of the border by enforcing the immigration and customs laws. As a result, routine searches at the border do not require a warrant or any individualized suspicion that the thing to be searched contains evidence of illegal activity.

The Exception to the Exception: Non-Routine Searches

But the border search exception is not without limits. As noted, this exception only applies to routine searches, such as those of luggage or bags presented at the border. Non-routine searches such as searches that are highly intrusive and impact the dignity and privacy interests of individuals, or are carried out in a particularly offensive manner must meet a higher standard: individualized reasonable suspicion. In a nutshell, that means border agents must have specific and articulable facts suggesting that a particular person may be involved in criminal activity.

For example, the Supreme Court held that disassembling a gas tank is routine and so a warrantless and suspicionless search is permitted. However, border agents cannot detain a traveler until they have defecated to see if they are smuggling drugs in their digestive tract unless the agents have a reasonable suspicion that the traveler is a drug mule.

Border Searches of Digital Devices

How does this general framework apply to digital devices and data at the border? Border agents argue that the border search exception applies to digital searches. We think they are wrong. Given that digital devices like smartphones and laptops contain highly personal information and provide access to even more private information stored in the cloud, the border search exception should not apply.

As Chief Justice Roberts recognized in a 2014 case, Riley v. California:

Snooping into such privacies is extraordinarily intrusive, not routine. Thus, when the government asserted the so-called incident to arrest exception to justify searching a cell phone without a warrant during or immediately after an arrest, the Supreme Court called foul.

Why is the Riley decision important at the border? For one thing, the incident to arrest exception that the government tried to invoke is directly comparable to the border search exception, because both are considered categorical exemptions. Given that the intrusion is identical in both instances, the same privacy protections should apply.

Moreover, with the ubiquity of cloud computing, a digital device serves as a portal to highly sensitive data, where the privacy interests are even more significant. Following Riley, we believe that any border search of a digital device or data in the cloud is unlawful unless border agents first obtain a warrant by showing, to a judge, in advance, that they have probable cause to believe the device (or cloud account) likely contains evidence of illegal activity.

However, lower courts havent quite caught up with Riley. For example, the Ninth Circuit held that border agents only need reasonable suspicion of illegal activity before they could conduct a non-routine forensic search of a travelers laptop, aided by sophisticated software. Even worse, the Ninth Circuit also held that a manual search of a digital device is routine and so a warrantless and suspicionless search is still reasonable under the Fourth Amendment. Some courts have been even less protective. Last year a court in the Eastern District of Michigan upheld a computer-aided border search of a travelers electronic devices that lasted several hours without reasonable suspicion.

EFF is working hard to persuade courts (and border agents) to adopt the limits set forth in the Riley decision for border searches of cellphones and other digital devices. In the meantime, what should you do to protect your digital privacy?

Much turns on your individual circumstances and personal risk assessment. The consequences for non-compliance with a command from a CBP agent to unlock a device will be different, for example, for a U.S. citizen versus a non-citizen. If you are a U.S. citizen, agents must let you enter the country eventually; they cannot detain you indefinitely. If you are a lawful permanent resident, agents might raise complicated questions about your continued status as a resident. If you are a foreign visitor, agents may deny you entry entirely.

We recommend that everyone conduct their own threat model to determine what course of action to take at the border. Our in depth Border Search Whitepaper offers you a spectrum of tools and practices that you may choose to use to protect your personal data from government intrusion. For a more general outline of potential practices, see our pocket guides to Knowing Your Rights and Protecting Your Data at the Border.

Were also collecting stories of border search abuses at: borders@eff.org

And join EFF in calling for stronger Constitutional protection for your digital information by contacting Congress on this issue today.

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The Bill of Rights at the Border: Fourth Amendment Limits on Searching Your Data and Devices - EFF

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On Wednesdays broadcast of CNNs New Day, Representative Luis Gutierrez (D-IL) argued, they call them sanctuary cities, what I would saytheyre Fourth Amendment cities.

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Gutierrez said, Heres how I see it, they call them sanctuary cities, what I would say, Chris, theyre Fourth Amendment cities. Why do I say that? If you supply a warrant to the city of Chicago, right, we will absolutely honor that warrant. But youve got to get a warrant. So think about it a moment, the DEA, the FBI, the ATF, they get warrants, right? They go and pick people up. What ICE, which is another federal law enforcement agency, does, is it wants to have people detained, and wants the city of Chicago to go after people without any probable cause being submitted before the court, and without a warrant.

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Dem Rep Gutierrez: 'Sanctuary Cities' Are Actually 'Fourth Amendment Cities' - Breitbart News

The Fourth Amendment

Imagine youre driving a car, and a police officer spots you and pulls you over for speeding. He orders you out of the car. Maybe he wants to place you under arrest. Or maybe he wants to search your car for evidence of a crime. Can the officer do that?

The Fourth Amendment is the part of the Constitution that gives the answer. According to the Fourth Amendment, the people have a right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. This right limits the power of the police to seize and search people, their property, and their homes.

The Fourth Amendment has been debated frequently during the last several years, as police and intelligence agencies in the United States have engaged in a number of controversial activities. The federal government has conducted bulk collection of Americans telephone and Internet connections as part of the War on Terror. Many municipal police forces have engaged in aggressive use of stop and frisk. There have been a number of highly-publicized police-citizen encounters in which the police ended up shooting a civilian. There is also concern about the use of aerial surveillance, whether by piloted aircraft or drones.

The application of the Fourth Amendment to all these activities would have surprised those who drafted it, and not only because they could not imagine the modern technologies like the Internet and drones. They also were not familiar with organized police forces like we have today. Policing in the eighteenth and early nineteenth centuries was a responsibility of the citizenry, which participated in night watches. Other than that, there was only a loose collection of sheriffs and constables, who lacked the tools to maintain order as the police do today.

The primary concerns of the generation that ratified the Fourth Amendment were general warrants and writs of assistance. Famous incidents on both sides of the Atlantic gave rise to placing the Fourth Amendment in the Constitution. In Britain, the Crown employed general warrants to go after political enemies, leading to the famous decisions in Wilkes v. Wood (1763) and Entick v. Carrington (1765). General warrants allowed the Crowns messengers to search without any cause to believe someone had committed an offense. In those cases the judges decided that such warrants violated English common law. In the colonies the Crown used the writs of assistancelike general warrants, but often unbounded by time restraintsto search for goods on which taxes had not been paid. James Otis challenged the writs in a Boston court; though he lost, some such as John Adams attribute this legal battle as the spark that led to the Revolution. Both controversies led to the famous notion that a persons home is their castle, not easily invaded by the government.

Today the Fourth Amendment is understood as placing restraints on the government any time it detains (seizes) or searches a person or property. The Fourth Amendment also provides that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. The idea is that to avoid the evils of general warrants, each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show probable causea certain level of suspicion of criminal activityto justify the search or seizure.

To the extent that a warrant is required in theory before police can search, there are so many exceptions that in practice warrants rarely are obtained. Police can search automobiles without warrants, they can detain people on the street without them, and they can always search or seize in an emergency without going to a judge.

The way that the Fourth Amendment most commonly is put into practice is in criminal proceedings. The Supreme Court decided in the mid-twentieth century that if the police seize evidence as part of an illegal search, the evidence cannot be admitted into court. This is called the exclusionary rule. It is controversial because in most cases evidence is being tossed out even though it shows the person is guilty and, as a result of the police conduct, they might avoid conviction. The criminal is to go free because the constable has blundered, declared Benjamin Cardozo (a famous judge and ultimately Supreme Court justice). But, responded another Supreme Court justice, Louis Brandeis, If the government becomes the lawbreaker, it breeds contempt for the law.

One of the difficult questions today is what constitutes a search? If the police standing in Times Square in New York watched a person planting a bomb in plain daylight, we would not think they needed a warrant or any cause. But what about installing closed circuit TV cameras on poles, or flying drones over backyards, or gathering evidence that you have given to a third party such as an Internet provider or a banker?

Another hard question is when a search is acceptable when the government has no suspicion that a person has done something wrong. Lest the answer seem to be never, think of airport security. Surely it is okay for the government to screen people getting on airplanes, yet the idea is as much to deter people from bringing weapons as it is to catch themthere is no cause, probable or otherwise, to think anyone has done anything wrong. This is the same sort of issue with bulk data collection, and possibly with gathering biometric information.

What should be clear by now is that advancing technology and the many threats that face society add up to a brew in which the Fourth Amendment will continue to play a central role.

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

What the Fourth Amendment Fundamentally Requires by Barry Friedman

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

For example, sometimes the Justices say that there is a strong preference for government agents to obtain warrants, and that searches without warrants are presumptively invalid. At other times they say warrants are unnecessary, and the only requirement is that searches be reasonable. At times the Justices say probable cause is required to support a search; at others they say probable cause is not an irreducible minimum.

This is your Fourth Amendment. It describes [t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. It is important for each American to focus on some basics and decideseparate and apart from what the Justices saywhat this vital amendment means.

People say that the Fourth Amendment protects privacy, but that trivializes it. In this world you give up a lot of privacy, whether you wish to or not. Internet cookies, or data stored in web browsers, are just one example. But the Internet companies are not going to come take you away. The government might. What the Fourth Amendment protects is the right of the people to be secure. The Fourth Amendment is the means of keeping the government out of our lives and our property unless it has good justification.

In evaluating how the Fourth Amendment should be interpreted, it is essential to bear in mind the vast changes in policing since the time it was ratified. Whereas policing once was reactive, tasked with identifying and catching criminals, today it has become proactive and is based in deterrence. Before, policing was mostly based on suspicion, it was aimed at people for whom there was cause to believe they had violated or were about to violate the law. Today, policing is aimed at all of usfrom red light cameras to bulk data collection by intelligence agencies to airport security.

There are some basic principles that should govern searches and seizures.

First, no member of the Executive branch should be permitted to intervene in our lives without the say-so of at least one other branch. This is fundamental, and all the more important when that Executive actor engages in surveillance of the citizenry and can use force and coercion against them.

Second, a central purpose of the Fourth Amendment is preventing arbitrary or unjustified intrusions into the lives and property of citizens.

In light of these basic principles, certain interpretations of the Fourth Amendment follow:

No search or seizure is reasonable if it is not based on either legislative authorization or pursuant to rules that have some form of democratic say in their making. The police can write rulesall other agencies of executive government dobut absent a critical need for secrecy those rules should be public and responsive to public wishes.

Second, warrants are to be preferred. Policing agencies are mission-oriented. We want them to bethey have a vital role protecting public safety. But because they are mission-oriented, warrants should be obtained in advance of searching whenever possible so that a neutral judge can assess the need to intrude on peoples lives.

Third, we should distinguish between searches aimed at suspects and those aimed at society in general. When there is a particular suspect, the protections of a warrant and probable cause apply. But those protections make no sense when we are all the target of policing. In the latter instance the most important protection is that policing not discriminate among us. For example, at airport security all must be screened the same unless and until there is suspicioncause to single someone out.

Finally, often todays policing singles out a particular group. Examples include profiling (based on race, religion, or something else) or subjecting only workers in some agencies to drug tests. When policing is group-based, the proper clause of the Constitution to govern is the Equal Protection Clause. When discriminatory searching or seizing occurs, the government should have to prove two things: that the group it is selecting for unfavorable treatment truly is more likely to contain people worthy of the governments attention, and that the incidence of problematic behavior is sufficiently great in that group to justify burdening everyone. Otherwise, the government should go back to either searching individuals based on suspicion, or search us all.

The Future of the Fourth Amendment by Orin Kerr

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

The Fourth Amendment was written over two hundred years ago. But todays crimes often involve computers and the Internet, requiring the police to collect digital evidence and analyze it to solve crimes.

The major question is, how much power should the police have to collect this data? What is an unreasonable search and seizure on the Internet?

Consider the example of a Facebook account. If you log in to Facebook, your use of the account sends a tremendous amount of information to Facebook. Facebook keeps records of everything. What you post, what messages you send, what pictures you like, even what pages you view. Facebook gets it all, and it keeps records of everything you do. Now imagine that the police come to Facebook and want records of a particular user. The police think the suspect used Facebook to commit the crime or shared evidence of the crime using the site. Maybe the suspect was cyberstalking and harassing a victim on Facebook. Or maybe the suspect is a drug dealer who was exchanging messages with another drug dealer planning a future crime. Or perhaps the suspect committed a burglary, and he posted pictures of the burglary for all of his Facebook friends to see.

Heres the hard question: What limits does the Fourth Amendment impose on the government getting access to the account records? For example, is it a Fourth Amendment search or seizure for the government to get what a person posted on his Facebook wall for all of his friends to see? Is it a search or seizure to get the messages that the suspect sent? How about records of what page the suspect viewed? And if it is a search or seizure, how much can the government seize with a warrant? Can the government get access to all of the account records? Only some of the account records?

The courts have only begun to answer these questions, and it will be up to future courts to figure out what the Fourth Amendment requires. As more people spend much of their lives online, the stakes of answering these questions correctly becomes higher and higher.

In my view, courts should try to answer these questions by translating the traditional protections of the Fourth Amendment from the physical world to the networked world. In the physical world, the Fourth Amendment strikes a balance. The government is free to do many things without constitutional oversight. The police can watch people in the public street or watch a suspect in a public place. They can follow a car as it drives down the street. On the other hand, the police need cause to stop people, and they need a warrant to enter private places like private homes.

The goal for interpreting the Fourth Amendment should be to strike that same balance in the online setting. Just like in the physical world, the police should be able to collect some evidence without restriction to ensure that they can investigate crimes. And just like in the physical world, there should be limits on what the government can do to ensure that the police do not infringe upon important civil liberties.

A second important area is the future of the exclusionary rule, the rule that evidence unconstitutionally obtained cannot be used in court. The history of the exclusionary rule is a history of change. In the 1960s and 1970s, the Supreme Court dramatically expanded the exclusionary rule. Since the 1980s, however, the Supreme Court has cut back on when the exclusionary rule applies.

The major disagreement is over whether and how the exclusionary rule should apply when the police violate the Fourth Amendment, but do so in good faith, such as when the law is unclear or the violation is only technical. In the last decade, a majority of the Justices have expanded the good faith exception to the exclusionary rule. A central question is whether the good faith exception will continue to expand, and if so, how far.

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

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Amendment IV - The United States Constitution

This week liberals have displayed their willingness to play politics with our constitutional rights. It is wrong. It is unfortunate. And most of all, it is dangerous.

Recognizing that national interest should supersede partisan interest, I have said repeatedly that the Russian hacking into the Democratic National Committee is not just an attack on Democrats, it is an attack on all Americans. I say this despite being an avowed Republican and supporter of President Donald Trump.

In the course of investigating the Russian hacking, a new, extremely troubling development has developed: duringroutine monitoring of foreign diplomats, the conversations of American citizens were transcribed and disseminated around government, in some cases for no apparent reason. These American citizens happened to be members of the incoming Trump administration and transition team.

This development should concern all Americans regardless of ideology or political party, but unfortunately the left has opted to ignore the charge and in some cases outright marginalize it.

As any 1L law student could tell you, the Fourth Amendment protects American citizens against unreasonable search and seizure. This includes our private communications.

As such, rules surrounding wiretapping are detailed, nuanced, specific, and carefully crafted to safeguard this constitutionally enshrined Fourth Amendment right. For instance, to monitor the communications of a U.S. citizen suspected of being an agent of a foreign power who is knowingly engag[ing]in clandestine intelligence activities, you must obtain a warrant from the FISA court.

If an American citizens communications are intercepted in the course of listening in on a foreign diplomat, the Director of National Intelligence has issued detailed guidance to minimize surveillance of this U.S. citizen.

Unless there is (1) evidence of a crime or (2) the communication is necessary to understand foreign intelligence, the intelligence official must minimize the acquisition and retention, and prohibit the dissemination of such information,according to 50 U.S.C. 1801. In addition to prohibiting dissemination of the U.S. citizens conversation, their names are to be kept private.

But these procedures were allegedly disregarded not once but on several occasions during the Obama administration. For example, the personal communications of Trumps former National Security Adviser, Mike Flynn, with the Russian ambassador were transcribed and disseminated around government.

Was Flynn committing a crime? Or were Flynns words pertinent to foreign intelligence? Even if the answer is yes, the egregious actions of the intelligence community went further.

Nine current and former officials in senior positions discussed the situation with the Washington Post, and some details of Flynns conversation were made public. As Congressman Trey Gowdy reminded FBI Director James Comey, leaking classified information carries a penalty of up to ten years.

The trampling of Flynns rights was of little concern to the left. And as the grievances continue to grow, outrage is still strangely muted.

The head of the House Intelligence Community, Congressman Devin Nunes, announced last week that on numerous occasions the intelligence community incidentally collected information about U.S. citizens involved in the Trump Transition. The collected communications of U.S. citizens appeared to have little or no apparent intelligence value but were nevertheless widely disseminated in intelligence community reporting.

The names of the Trump officials were unmasked and none of this surveillance was related to Russia or the investigation of Russian activities or of the Trump team, said Nunes.According to reporting, some of the unmasked conversations were innocuous discussions about Trumps children!

This information should alarm anyone concerned about protecting the rights of American citizens, especially when coupled with the Obama administrations last-minute executive order, E.O. 12333, which permits the NSA to share private communications widely around government.A curious last move for an outgoing administration accused of unauthorized unmasking of Trump transition officials communications.

Despite the law being changed to allow widespread dissemination of communications in some cases, according to Nunes, this change was implementedafter the apparent violations that took place in disseminating Trump transition officials communications.

Liberals should be alarmed at the accusations of wrongful surveillance of American citizens. The Fourth Amendment should not be a partisan issue but a cherished constitutional right that both parties seek to protect.

The liberal promotion of politics above constitutional principle is extremely concerning and threatening to the cherished values of our American democratic system.

Kayleigh McEnany is a CNN political commentator. She is a graduate of Harvard Law School and Georgetown Universitys School of Foreign Service, and she also studied politics at Oxford University. In addition to writing a column for Above the Law, she is a contributor for The Hill. She can be found on Twitter at @KayleighMcEnany.

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Liberal Silence Tramples The Fourth Amendment - Above the Law

Most cars manufactured in the past three years come with event data recorders, sometimes known as black boxes. These devices are computers that record and store crash data in the event of an accident. Under regulations adopted by the National Highway Traffic Safety Administration, the event data recorders must record 15 data inputs. They include engine rpm, steering, the length and severity of the crash, and the braking during the crash. The data on the devices are intentionally difficult to access. Doing so generally requires specialized equipment that a typical car owner wont have.

A new Florida state court decision, State v. Worsham, considers an interesting question: How does the Fourth Amendment apply to government efforts to retrieve data from event data recorders? Worsham was in a terrible accident, and his car was impounded. Twelve days later, the police downloaded the data from the event data recorder without obtaining a warrant. Worsham has been charged with drunken driving and vehicular homicide, and the police want to use the data from the event data recorder to show Worshams guilt.

The question is: Does the Fourth Amendment allow it?

The Florida court divides 2-1. According to the majority, accessing the data is a search that requires a warrant. Because the police accessed the data without a warrant, the evidence must be suppressed. From the majority opinion:

A cars black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy. Modern technology facilitates the storage of large quantities of information on small, portable devices. The emerging trend is to require a warrant to search these devices. See Riley v. California, 134 S. Ct. 2473 (2014) (requiring warrant to search cell phone seized incident to arrest); Smallwood, 113 So. 3d 724 (requiring warrant to search cell phone in search incident to arrest); State v. K.C., 207 So. 3d 951 (requiring warrant to search an abandoned but locked cell phone).

The majority offers several rationales for its decision, but this seems to be the main one:

Extracting and interpreting the information from a cars black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.

Although electronic data recorders do not yet store the same quantity of information as a cell phone, nor is it of the same personal nature, the rationale for requiring a warrant to search a cell phone is informative in determining whether a warrant is necessary to search an immobilized vehicles data recorder. These recorders document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible mechanical parts of a vehicle. Just as cell phones evolved to contain more and more personal information, as the electronic systems in cars have gotten more complex, the data recorders are able to record more information. The difficulty in extracting such information buttresses an expectation of privacy.

The dissent argues that people have no reasonable expectation of privacy in the data stored in event data recorders:

In contrast to a cellular phone, an EDR does not contain a broad array of private information such as photos, passwords, and other sensitive records previously found in the home. Riley v. California, 134 S. Ct. 2473, 2491 (2014). Significantly, the EDR in the instant case did not contain GPS information relative to the vehicles travels, which may be subject to privacy protection. See United States v. Jones, 565 U.S. 400, 415-17 (2012) (Sotomayor, J., concurring) (expressing concern with GPS information which reflects a wealth of detail about [a persons] familial, political, professional, religious, and sexual associations). As noted in the majority opinion, the EDR in this case was only recording speed and braking data, the cars change in velocity, steering input, yaw rate, angular rate, safety belt status, system voltage, and airbag warning lamp information. Moreover, this data had not been knowingly inputted by Appellee; in fact, it is likely that Appellee did not even know that the vehicle he was driving had an EDR. Therefore, it would be quite a stretch to conclude that Appellee sought to preserve this information as private.

More from the dissent:

The data that the government extracted from the vehicle that was owned and driven by Appellee in this case was not information for which Appellee or any other owner/driver had a reasonable expectation of privacy. The data was not personal to Appellee, was not password protected by Appellee, and was not being collected and maintained solely for the benefit of Appellee. The EDR was installed by the vehicles manufacturer at the behest of the National Highway Traffic Safety Administration and, as distinct from Jones, the purpose of the data collection is highway and driver safety. See New York v. Class, 475 U.S. 106, 113 (1986) ([A]utomobiles are justifiably the subject of pervasive regulation by the State [and e]very operator of a motor vehicle must expect the State, in enforcing its regulations, will intrude to some extent upon that operators privacy.).

Heres my tentative take: This is a pretty tricky question based on current Fourth Amendment caselaw. Applying that caselaw, I would think that accessing the event data recorder was likely a search. On the other hand, its not obvious to me that it requires a warrant.

Accessing the data was likely a search because it was accessing a closed container inside the persons property. Thats a classic kind of Fourth Amendment search. Whether the contents of the container were sensitive or personal, or how hard it was to access the container, doesnt strike me as relevant here. Because this was an access to a container, revealing information that was hidden from view, what I would call the private facts model doesnt apply under Arizona v. Hicks.

Theres a counterargument that this shouldnt be a search under United States v. Knotts, the beeper case. But the event data recorder stores all sorts of data that were not exposed to public observation, so I would tend to think Knotts doesnt apply. Theres also a counterargument that this is like reaching in to move papers from the VIN on a car that was said to not be a search in New York v. Class. But a VIN is exposed to the public while the data in the black box isnt, and the statement as to VINs in Class appears to be dicta. On the whole, my tentative sense is that this was a search.

Whether accessing the data should require a warrant is an interesting question. Im not sure of the answer. This was information in an automobile: Should the automobile exception apply such that the government needs probable cause but no warrant? Perhaps not, on a theory that Riley trumps the automobile exception and the auto exception doesnt apply to electronic storage devices. See United States v. Camou. Or perhaps so, on the thinking that Riley doesnt change the automobile exception. Also, theres a plausible argument that the regulations governing event data recorders diminish the expectation of privacy such that no warrant should be required even though accessing them is a search. See Delaware v. Prouse.

These are tricky questions, I think, at least based on current Fourth Amendment caselaw.

Link:
The Fourth Amendment and access to automobile 'black boxes' - Washington Post

The city of Joliet, Illinois, is about to find out just how costly its miscarriage of justice can be, now that the U.S. Supreme Court ruled unanimouslylast week that it cannot incarcerate an individual while he is awaiting trial, absent probable cause. Supreme Court Justice Elena Kagan was succinct in delivering the courts opinion:

The primary question in this case is whether Manuel [the petitioner] may bring a claim based on the Fourth Amendment to contest the legality of his pro-trial confinement.... We hold today that Manuel may challenge his pretrial detention on the ground that it violated [his] Fourth Amendment [rights]....

Manuels claim fits the Fourth Amendment, and the Fourth Amendment fits Manuels claim, as hand in glove.

What the ruling does is confirm 10 lower courts similar rulings, as Kagan noted: There is now broad consensus among the circuits that the Fourth Amendment right to be free from seizure but upon probable cause extends through the pretrial period.

It all began shortly after midnight, March 18, 2011 when Joliet police pulled over an automobile in which Elijah Manuel was riding, claiming that his brother who was driving failed to signal for a left turn. Rory Little, a law professor at the University of California Hastings College of Law, explained what happened next:

Elijah Manuel alleged that an officer pulled him from a car, beat him, called him racial slurs, and then arrested him for drugs even though a field test on pills Manuel was carrying came back negative. He further alleged that an evidence technician at the police station conducted another test on the pills that also came back negative, but that the technician falsely stated that the test was positive.

Another officer then swore out a complaint against Manuel; based on all these false statements, a county judge ordered Manuel to be detained. Manuel was not released until seven weeks later, after a state police lab reported that the pills contained no controlled substances and for unknown reasons, the state prosecutor waited a month to move for dismissal.

Two years later, Manuel sued the City of Joliet and its officers for violation of his civil rights under 42 U.S.C. 1983, alleging two Fourth Amendment violations: his false arrest and his prolonged unlawful post-arrest detention.

Manuel lost the first round with the district court ruling that he waited too long before filing his complaint and second that this wasnt a Fourth Amendment issue but a Due Process issue. When Manuel appealed, the appeals court upheld the lower courts decision. He THEN appealed to the U.S. Supreme Court, which reversed unanimously on March 21.

An Amicus Curiae (friendly brief) was filed on Manuels behalf by the U.S. Justice Foundation, the Downsize DC Foundation, the Conservative Legal Defense and Education Fund, the Institute on the Constitution, and the Gun Owners of America (GOA) and its foundation. This allowed these groups to present their point of view on the matter before the Supreme Court:

Petitioner Elijah Manuel has appropriately invoked the Fourth Amendment as a basis for his claim of malicious prosecution. Arrested without probable cause, Manuel was detained in actual custody for 48 days during which time the police falsified evidence before a grand jury leading to his arraignment on false charges which were dropped by the prosecutor only after discovery that the charges were baseless.

The Fourth Amendment guarantee against unreasonable searches and seizures is predicated on the right of the people to be secure in their persons, houses, papers, and effects. Viewed against its common law backdrop, the Amendments purpose and scope extend throughout any period of pretrial detention up to and including the day upon which all criminal charges are dropped.

During that time interval, the Fourth Amendment governs the actions of the arresting authorities. While the immediate effect of a violation of the Fourth Amendment is the deprivation of ones liberty, the interest protected by that Amendment is ones property rights.

The brief allowed the GOA to expand on one of its most salient and persuasive reasons for supporting the Fourth Amendment: the right to life and the reasonable implication that with that right comes the right to defend that life, with deadly force if necessary. As the GOA explained: This is why GOA is working to explain to courts that the Fourth Amendment protects each Americans property interests, including Americans property interest in their own body and firearms.

The Amicus Curiae will also likely serve Manuel and his attorneys well as they take the next step in obtaining justice by filing for damages against Joliet and its offending officers who were involved in this egregious miscarriage: Indeed, by wrongfully holding Manuel in pretrial detention for 48 days, the City of Joliet and its police officers caused him not only emotional distress, but harmed his reputation, inflicted out-of-pocket losses, and deprived him of employment opportunities.

Now that the Supreme Court has cleared the way, confirming 10 lower courts similar rulings, Manuel is likely to exact justice and restitution from Joliet, Illinois, while simultaneously performing the necessary warning to other localities abusive of precious rights such as the Fourth Amendment to the Constitution of the United States. Remember what Kagan concluded: We hold today that Manuel may challenge his pretrial detention on the ground that it violated [his] Fourth Amendment [rights].

Joliet, Illinois: Get ready to write a big check to Elijah Manuel.

An Ivy League graduate and former investment advisor, Bob is a regular contributor to The New American magazine and blogs frequently at LightFromTheRight.com, primarily on economics and politics. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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Supreme Court Unanimously Upholds Fourth Amendment in Illinois ... - The New American